Filed 9/21/26 P. v. Gazazyan CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B342049
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA065038)
v.
OVANES GAZAZYAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Diego H. Edber, Judge. Reversed and
remanded.
Sabrina R. Damast, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven D. Matthews, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Ovanes Gazazyan appeals from the trial court’s order
denying his motion to vacate his conviction under Penal Code
section 1473.7.1 In 2010, Gazazyan entered a plea of no contest
to one felony count of petty theft with a prior felony conviction for
grand theft. The trial court found Gazazyan failed to show he did
not meaningfully understand the consequences of his plea. On
appeal, Gazazyan contends the court erred and that his failure to
meaningfully understand the mandatory immigration
consequences of his plea was prejudicial.
While this case was pending, the California Supreme Court
issued People v. Hernandez (2026) 20 Cal.5th 598 (Hernandez),
clarifying the analysis the trial court must employ when
evaluating a section 1473.7 motion and providing guidance as to
what evidence may establish a defendant’s claim of error.
Although we determine that the trial court’s ruling in this case
was inconsistent with Hernandez, we also conclude that
Gazazyan did not create a record establishing by a preponderance
of the evidence that error damaged his ability to meaningfully
understand, defend against, or knowingly accept the
consequences of his plea. Since neither the trial court nor the
parties had the benefit of Hernandez, we reverse the trial court
order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The Plea
In May 2010, Gazazyan stole “Microsoft point cards” worth
$99.98 from a Sears in North Hollywood. Later that month, the
People charged Gazazyan by information with petty theft with
prior grand theft felony convictions (§ 666). The information
alleged that Gazazyan had two prior convictions for theft of an
1 Undesignated statutory references are to the Penal Code.
2
automobile (§ 487, subd. (d)(1)); he had suffered two prior prison
terms pursuant to section 667.5, subdivision (d); and he had
sustained three prior felony convictions pursuant to section 1203,
subdivision (e)(4).
In August 2010, Gazazyan pled no contest to petty theft
with priors in violation of section 666 and admitted one of the
prior conviction allegations. The negotiated disposition was three
years of formal probation with the condition that Gazazyan serve
364 days in county jail.
Gazazyan signed a felony advisement of rights, waiver, and
plea form, which included the following advisement:
“Immigration Consequences – I understand that if I am not a
citizen of the United States, I must expect my plea of guilty or no
contest will result in my deportation, exclusion from admission or
reentry to the United States, and denial of naturalization and
amnesty.” The form also stated that before entering the plea,
Gazazyan had the opportunity to discuss the consequences of the
plea with his counsel. Gazazyan signed the form, indicating he
read it and understood and agreed with what was stated in the
form. His attorney certified that he had discussed the
consequences of the plea with Gazazyan.
During the plea hearing, the trial court asked Gazazyan
whether he had gone over the contents of the waiver form and
discussed his case “thoroughly” with his attorney. Gazazyan
answered that he had. Gazazyan also answered in the
affirmative when the trial court asked whether he understood
everything his attorney had explained to him. The trial court
then asked: “I want to make sure defense counsel, that you
advised the defendant of the immigration consequences,
including the likelihood or possibility or probability whatever it is
3
of deportation in light of the specific charges. Did you go over
that?” Defense counsel replied that he had. To Gazazyan, the
court inquired: “And specifically on the waiver form you also
initialed that you read the potential immigration consequences.
Did you do that?” Gazazyan stated that he had. The court asked,
“And you understood what you initialed?” Gazazyan replied that
he did.
The trial court found Gazazyan expressly, knowingly,
understandingly, and intelligently waived his rights. The court
placed Gazazyan on three years of formal probation and ordered
him to serve 364 days in county jail. He received 189 days of
custody credits.
Section 1473.7 Motion
In July 2024, Gazazyan filed a motion to vacate his
conviction pursuant to section 1473.7. Gazazyan argued he failed
to meaningfully understand the mandatory immigration
consequences of his plea, and he would never have accepted the
plea offer had he understood those consequences. He asserted
that his attorney failed to inform him of the specific adverse
immigration consequences of his plea. He also contended
objective evidence demonstrated it was reasonably probable he
would not have entered the plea had he known of the adverse
immigration consequences.
According to a declaration Gazazyan submitted in support
of the motion, he came to the United States as a refugee in 1994,
when he was 13 years old. At the time of his plea, his wife and
child were United States citizens and his parents and siblings
lived in the United States with legal status. He had been
consistently employed since he was 16 years old.
4
Gazazyan did “not recall being advised about the
immigration consequences of [his] conviction by [his] attorney.”
His attorney did not advise him his plea was to a “mandatory
deportable and inadmissible defense, that it would subject [him]
to mandatory detention consequences, and that it would
disqualify [him] from certain immigration benefits and defenses.”
Had he been properly informed, he would have been willing to
“agree to a plea bargain for a more serious charge if it did not
have these life-long immigration consequences” and he would
have been willing to spend more time “in jail” to avoid “these
mandatory consequences.” If such a plea could not be reached, he
would have been willing to go to trial. At the time, staying in the
United States with his family “was the most important thing to
[him].” Gazazyan also submitted evidence of his marriage to a
United States citizen, the citizenship of his child, the United
States citizenship and legal resident status of his relatives, his
education, and a letter of support from a neighbor.
Gazazyan additionally submitted the declaration of an
immigration attorney. The attorney stated that a conviction
under section 666 is a crime involving moral turpitude, which is
“a ground of deportability and inadmissibility. (8 U.S.C.
§ 1227(a)(2)(i)(I); 8 U.S.C. § 1182(a)(2)(A)(i)(I).) As a ground of
inadmissibility, the conviction also renders Mr. Gazazyan
ineligible to apply for permanent residency, despite his strong
ties to U.S. citizens. (8 U.S.C. § 1255(a)). A crime involving
moral turpitude is also a ground of mandatory immigration
detention. (8 U.S.C. § 1226(c)(l)(A).)”
In September 2024, the trial court held a hearing on the
motion. Gazazyan did not testify, and the parties did not enter
any additional evidence into the record. The People argued that
5
the transcript of the plea colloquy showed that the original trial
court asked Gazazyan’s defense counsel whether he had advised
Gazazyan of the immigration consequences, and counsel
answered in the affirmative. Gazazyan had also signed a waiver
acknowledging that he should expect he would be deported as a
result of his plea. The People further pointed to Gazazyan’s
declaration stating merely he did not “remember” if he was
advised of the immigration consequences and asserted that
Gazazyan had pled to “so many criminal matters” that it was
“difficult to believe” he had no idea of the consequences of his
plea.
Gazazyan’s counsel responded that Gazazyan’s other
criminal convictions were not relevant because they may have
had different immigration consequences and the advisements he
received may have differed. Counsel also argued that the waiver
form by itself was insufficient because it did not convey the
specific consequences of Gazazyan’s plea. Counsel asserted that
the original trial court’s statements during the colloquy, and
defense counsel’s response, did not establish that defense counsel
had explained to Gazazyan that the immigration consequences
were mandatory. Counsel further indicated that she had been
unable to contact Gazazyan’s former trial counsel, despite
multiple attempts to reach him.
In October 2024, the trial court issued a written order
denying the motion. The court cited the plea colloquy, finding it
implausible that Gazazyan, “who has had many criminal
convictions,” failed to understand the adverse immigration
consequences when he was “advised of those consequences in
open court and signed the waiver form under penalty of perjury
attesting that he understood those consequences.” The court also
6
found not credible Gazazyan’s statement in his declaration that
he did not recall his trial attorney advising him of the
consequences of his plea or did not understand that the plea
carried mandatory immigration consequences. The court noted
that “the Judge specifically asked counsel if he advised the
defendant of the immigration consequences, including the
likelihood of deportation. To find otherwise, especially in light of
the fact that this was not the defendant’s first change of plea,
would be disingenuous.” Finally, the court found nothing in the
record indicating that trial counsel did not meaningfully advise
Gazazyan of the immigration consequences. The court concluded
Gazazyan failed to meet his burden to show he was entitled to
relief.
Gazazyan filed a timely notice of appeal.
DISCUSSION2
I. Section 1473.7
Section 1473.7, allows “[a] person who is no longer in
criminal custody [to] file a motion to vacate a conviction or
sentence.” (Id., subd. (a).) “To establish eligibility to withdraw a
guilty plea under section 1473.7(a)(1), a defendant must show, by
a preponderance of the evidence, (1) ‘error damaging [the
defendant’s] ability to meaningfully understand, defend against,
or knowingly accept the actual or potential adverse immigration
consequences of a conviction or sentence’ and (2) that the damage
resulted in prejudice.” (Hernandez, supra, 20 Cal.5th at p. 613.)
On appeal, “we independently review the evidence in the
2 In May 2025, Gazazyan filed a request for judicial notice of
his motions to vacate five other convictions, all of which occurred
prior to the conviction at issue here; the supporting declarations
7
record.” (Hernandez, supra, 20 Cal.5th at p. 613.) When the trial
court’s findings are based on written materials rather than the
court’s observations of the defendant, “we do not defer to those
findings” because we “are similarly situated to the trial court
when interpreting a ‘cold record.’ ” (Ibid.) “[W]e may ‘ “ ‘reach a
different conclusion [from the trial court] on an independent
examination of the evidence . . . even where the evidence is
conflicting’ ” ’ and the trial court’s conclusions are based in part
on its assessment of ‘ “ ‘the credibility of witnesses [it] heard and
observed.’ ” ’ ” (Ibid.)
II. Hernandez
Hernandez has clarified the analysis courts must apply
when evaluating whether there was error damaging the
defendant’s ability to meaningfully understand, defend against,
and documents submitted with those motions; and the trial court
orders granting those motions. He argues this evidence is
relevant because it undermines the trial court’s determination
that he must have understood the consequences of his plea since
he had entered several pleas before. The People oppose the
request on the basis that the evidence is irrelevant and was not
presented to the trial court. We deny Gazazyan’s request for
judicial notice. (The Chemical Toxin Working Group, Inc. v. The
Kroger Co. (2026) 120 Cal.App.5th 276, 288, fn. 5 [declining to
take judicial notice of materials unnecessary to resolution of the
appeal]; Al Shikha v. Lyft, Inc. (2024) 102 Cal.App.5th 14, 21–22
[reviewing courts generally do not take judicial notice of evidence
not presented to the trial court]; Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1564 [a court may take judicial notice of a
document in a court file but not the truth of facts asserted in
pleadings or affidavits filed with the court].) Our denial is
without prejudice to Gazazyan seeking to introduce additional
evidence in the trial court on remand.
8
or knowingly accept the actual or potential adverse immigration
consequences of a conviction or sentence. (§ 1473.7, subd. (a)(1).)
“In determining whether a defendant has established error for
purposes of section 1473.7(a)(1), we focus on the defendant’s
subjective understanding at the time they entered their guilty
plea. [Citation.] . . . ‘[T]he key is the mindset of the defendant
and not what an objectively reasonable person would have
understood under the circumstances.’ [Citation.]” (Hernandez,
supra, 20 Cal.5th at p. 614.) “Because the error inquiry focuses
on the defendant’s subjective understanding, courts evaluating
section 1473.7(a)(1) motions must look beyond the record of the
plea and consider the totality of the circumstances bearing on the
inquiry.” (Id. at p. 615.) “Courts must engage in a case-specific
examination that involves assessing credibility and weighing
circumstantial evidence.” (Ibid.)
“The most direct evidence of a defendant’s subjective
understanding consists of the defendant’s own statements to the
court when entering the plea and in declarations or testimony
given in support of their section 1473.7(a)(1) motion.”
(Hernandez, supra, 20 Cal.5th at p. 617.) However, “[w]hile the
focus of the error inquiry is on the defendant’s subjective
understanding, a defendant’s bare assertion that they did not
understand the immigration consequences or the options
available to them to defend against those consequences is
insufficient to establish error; the assertion must be corroborated
by objective evidence.” (Id. at p. 615.)
Our high court provided numerous examples of objective
evidence that might corroborate defendants’ assertions that they
did not understand the immigration consequences of a plea, had a
misunderstanding that damaged their ability to defend against
9
adverse immigration consequences, or did not knowingly accept
the immigration consequences. One category is evidence
demonstrating that the defendant’s counsel failed to fully or
accurately advise the defendant of the plea’s immigration
consequences. (Hernandez, supra, 20 Cal.5th at p. 615.) “Such
evidence may include evidence related to the quality of defense
counsel’s representation of the defendant and the nature of their
interactions,” and may be contained in “the record of the plea,
including defense counsel’s written and oral representations to
the court; in the defendant’s case file; or in declarations or
testimony by the defendant, defense counsel, witnesses, or
immigration law experts.” (Ibid.) “Relevant evidence includes
. . . whether counsel fully advised the defendant of definite and
potential immigration consequences of the conviction and
sentence that would result from the plea,” whether counsel’s
advice was accurate, and whether counsel discussed with the
defendant alternative immigration-safe pleas or the advantages
and disadvantages of going to trial. (Id. at pp. 615–616.)
Another category is “evidence of the trial court’s efforts to
confirm that the defendant understood the immigration
consequences of entering a guilty plea and had an opportunity to
discuss them with their attorney and tailor their defense strategy
accordingly. [Citation.] Such evidence may be found in the
written record, including the advisements and findings contained
in the plea form, and the transcript of the plea proceedings,
including any discussion related to immigration consequences in
the plea colloquy.” (Hernandez, supra, 20 Cal.5th at p. 616.)
Yet another category is “evidence of the defendant’s
priorities relevant to the plea. This includes evidence of the
defendant’s immigration status and prospects of obtaining
10
immigration benefits; evidence of how long the defendant has
lived in the United States, at what age they came here, and the
strength of their ties to their country of origin; and evidence of
the nature and extent of the defendant’s ties to the United States
and their family and community in this country. [Citations.] [¶]
Evidence of the defendant’s personal characteristics may also
shed light on their ability to understand the plea, its
consequences, and their options. This includes evidence of the
defendant’s education level, occupation, intellectual capacity,
mental health, disability, literacy, age, and sophistication;
evidence of the defendant’s English language proficiency and
ability to understand the interpreter, if any; and evidence of the
defendant’s prior experience with the criminal justice system.”
(Hernandez, supra, 20 Cal.5th at p. 617.)
Finally, the court explained that evidence of a defendant’s
statements and conduct during and after plea proceedings may
also show “understanding and informed acceptance of
immigration consequences or lack thereof.” (Hernandez, supra,
20 Cal.5th at p. 617.)
Ultimately, however, the touchstone is the defendant’s
subjective understanding. Thus, that the trial court gave a
generic immigration consequences advisement, or that the court
confirmed generally that defense counsel discussed immigration
consequences with the defendant, is relevant, but does not in
itself establish that the defendant “received complete and
accurate advice and meaningfully understood that advice.”
(Hernandez, supra, 20 Cal.5th at p. 616.) Instead, the analysis
must consider the totality of the circumstances.
In Hernandez, the defendant established section 1473.7
error. Hernandez testified that her attorney had not told her
11
mandatory deportation was a consequence of her plea.
(Hernandez, supra, 20 Cal.5th at p. 611.) She had signed a plea
form providing an immigration consequences advisement and her
attorney had certified on the form that he had explained any
possible immigration consequences to her. (Id. at pp. 609–610.)
However, the attorney had appeared on her behalf for the first
time at the plea hearing. (Id. at p. 610.) Immigration
consequences were not mentioned during the plea colloquy.
(Ibid.) Hernandez testified that although she told the court she
understood the plea form, she did not think deportation was a
possible consequence. (Id. at p. 611.) She testified that her
attorney had not explained the immigration consequences
advisement to her and she signed the form because he told her to
sign it. (Ibid.) She had never entered a plea before. (Id. at
p. 620.) Her attorney did not speak her language, and she
communicated with him only through an interpreter. (Ibid.) He
did not ask for additional time to advise her on the immigration
consequences of her plea or options for defending against them.
(Ibid.)
Two years after entering her plea, Hernandez obtained
permission from probation to travel to Mexico, and she attempted
to lawfully reenter at a port of entry. (Hernandez, supra, 20
Cal.5th at p. 621.) This suggested that she was, in fact, unaware
of ongoing immigration consequences resulting from her plea.
(Ibid.) When she entered the plea, she had lived in the United
States for 36 years, her entire family lived in the United States,
and she was married with five children and 14 grandchildren,
two of whom she cared for regularly. She had no prior criminal
record. (Id. at p. 609.)
12
On this record, the court determined that Hernandez had
established by a preponderance of the evidence “error impeding
[her] ability to meaningfully understand the immigration
consequences of her plea and to defend against or knowingly
accept those consequences.” (Hernandez, supra, 20 Cal.5th at
p. 621.) That she had received an immigration consequences
advisement in the plea form did not defeat the showing of error.
(Id. at p. 622.)
III. We Remand for the Trial Court to Reconsider the
Motion, and to Allow Gazazyan to Develop the
Record, Consistent With Hernandez
A. The trial court’s ruling was inconsistent with
Hernandez
The trial court did not have the benefit of Hernandez when
ruling on Gazazyan’s motion. As such, the court’s ruling focused
on the prior court’s colloquy with Gazazyan at the plea hearing,
in which the court confirmed that Gazazyan had reviewed the
plea form with defense counsel, he had read and understood the
immigration consequences advisement in the plea form, and
defense counsel had “advised the defendant of the immigration
consequences.” Based on this colloquy, the court found it
implausible that Gazazyan did not understand the immigration
consequences of his plea.
However, as Hernandez has now clearly established, the
trial court was required to focus on Gazazyan’s subjective
understanding at the time he entered the plea, looking beyond
the record of the plea and considering the totality of the
circumstances. The advisement in the plea form and the trial
court’s reference to that advisement alone did not show Gazazyan
received complete and accurate advice, or that he meaningfully
13
understood that advice. (Hernandez, supra, 20 Cal.5th at
pp. 616–617; People v. Curiel (2023) 92 Cal.App.5th 1160, 1175
(Curiel).)
While the attorney’s signature on the plea form indicating
that he explained any possible consequences of the plea to
Gazazyan “supports an inference that he provided [Gazazyan] the
advisement contained in the form,” it does not necessarily shed
“light on whether [the attorney] knew the immigration
consequences of the charged offenses and provided [Gazazyan]
complete and accurate advice about [his] options for defending
against them.” (Hernandez, supra, 20 Cal.5th at p. 625.)
Although the trial court could permissibly determine that the
record of the plea colloquy and plea form rendered Gazazyan’s
declaration that he received no advice about immigration
consequences not credible, the court was still required to consider
the record as a whole to determine whether there was error
under section 1473.7, subdivision (a).
B. Remand is appropriate to allow Gazazyan to
further develop the record
Because we independently review the evidence in the
record, the trial court’s application of an incorrect standard does
not, however, dictate the outcome on appeal. As in Hernandez,
we may reverse and direct the trial court to enter an order
granting the motion if “the evidence in the record establishes the
defendant’s eligibility for relief.” (Hernandez, supra, 20 Cal.5th
at p. 621, fn. 4.)
Here, however, Gazazyan’s evidence was insufficient to
show error under section 1473.7, subdivision (a)(1). His
declaration indicated only the following: “I do not recall being
advised about the immigration consequences of my conviction by
14
my attorney, Armen Tashjian. He did not know [sic] advise me
that my plea in this matter was a mandatory deportable and
inadmissible offense, that it would subject me to mandatory
detention consequences, and that it would disqualify me from
certain immigration benefits and defenses. . . . I only became
aware of these consequences much more recently, when I sought
legal advice about my immigration status. I was not aware of
them at the time of my plea.”
While Hernandez establishes that it is the defendant’s
subjective understanding that matters and the court must
consider the totality of the circumstances, a defendant’s “bare
assertion” of misunderstanding is not sufficient on its own. Here,
Gazazyan declared that he did not receive advice from his
attorney about the immigration consequences of his plea. Yet,
these statements were unaccompanied by any other objective
evidence. Gazazyan did not, for example, provide evidence
otherwise “related to the quality of defense counsel’s
representation of [him] and the nature of their interactions.”
(Hernandez, supra, 20 Cal.5th at p. 615.) Unlike the defendant
in Hernandez, Gazazyan did not proffer evidence that his
attorney did not speak his language or that he had not met with
the attorney before the date of the plea. And, as the trial court
pointed out, his suggestion that he received no advisement from
his counsel at least partially conflicted with the transcript of the
plea hearing. Gazazyan’s declaration failed to resolve the
inconsistency of his statements with the plea colloquy. He stated
that he “did not recall” his attorney advising him about the
immigration consequences of his conviction, but also
affirmatively declared that the attorney did not advise him about
specific consequences. (Id. at p. 633.) While not dispositive,
15
these inconsistencies undermined the credibility of his
statements in the declaration. (See id. at p. 619 [because the plea
form indicated defendant received an immigration consequences
advisement and attorney discussed it with her, our high court
credited the trial court’s implied finding that defendant’s
testimony that she was “never told” about the possibility of
deportation was not credible].)
While in Hernandez the plea colloquy did not mention
immigration consequences, here the trial court expressly asked
Gazazyan whether he understood the immigration consequences
advisement in the plea form, and expressly asked defense counsel
whether he had advised Gazazyan of the immigration
consequences of the plea. This suggests Gazazyan was “made
aware of the possibility that a conviction could have serious
immigration consequences and the need to consult with an
attorney about any immigration-related concerns.” (Hernandez,
supra, 20 Cal.5th at p. 616.)
The Hernandez court stressed that error does not turn on
what an attorney or the court told the defendant and, instead, the
focus is on “the defendant’s state of mind: what the defendant
subjectively understood—or did not understand—when entering
the challenged plea.” (Hernandez, supra, 20 Cal.5th at p. 626.)
Evidence that a defendant received an immigration consequences
advisement therefore does not necessarily defeat a showing of
error. Further, as in Hernandez, the plea form’s lack of
advisements about Gazazyan’s specific circumstances, and the
inconsistency between the form’s suggestion of mandatory
consequences and the court’s reference to possible or probable
consequences, had the potential to create confusion or
uncertainty about the actual consequences of the plea. (Id. at
16
p. 620; People v. Vivar (2021) 11 Cal.5th 510, 519, 533; People v.
Padron (2025) 109 Cal.App.5th 950, 962 [a form’s general
advisement may not speak to defendant’s particular status].)
But Gazazyan did not testify or declare that when the court
asked him whether he understood the plea form, he did not
believe serious immigration consequences were an actual
possibility. (Cf. Hernandez, supra, 20 Cal.5th at p. 611.) He did
not declare that the advisement he received in the plea form and
confirmed with the court confused him, led him to believe
immigration consequences were not mandatory, or that he was
unable to understand the advisement. Indeed, his declaration
simply did not address the plea form or his statements to the
court about the immigration advisement in the form at all.
Unlike the defendant in Hernandez, Gazazyan had prior
experience in the criminal justice system. (Id. at p. 617 [evidence
of the defendant’s prior experience with the criminal justice
system is relevant].) Gazazyan’s appellate briefing indicates that
at the time of the plea he had already been subject to
immigration removal proceedings, based on a prior conviction.
He did not proffer evidence that he took actions consistent with a
belief that the plea had no immigration consequences, such as
leaving the country and attempting to reenter. (Id. at p. 621.)
On the record before us, Gazazyan’s implied suggestion in
his declaration that he received no advice about immigration
consequences is not credible. He further provided no objective
evidence to corroborate his assertion in his declaration that his
attorney simply did not advise him about the mandatory
immigration consequences that flowed from the conviction. He
offered no evidence to explain or contextualize his statement to
the court that he had read and understood the plea form’s
17
advisement that he “must expect” the plea “will result” in
“deportation, exclusion from admission or reentry to the United
States, and denial of naturalization and amnesty.” (See Curiel,
supra, 92 Cal.App.5th at pp. 1175–1177 [language that plea will
result in deportation did not defeat defendant’s showing that she
did not meaningfully understand plea consequences,
demonstrated by evidence of discussions with attorney, counsel’s
advice that she should accept plea, attorney’s testimony at
hearing, and subsequent conduct showing a lack of awareness of
immigration consequences]; People v. Manzanilla (2022) 80
Cal.App.5th 891, 906 [despite plea form warning of deportation,
attorney’s notes indicated she did not advise of mandatory
deportation; defendant felt pressured to sign plea form; and
defendant had trouble reading the form because of cataracts].)
Gazazyan’s declaration did provide evidence of his
“priorities relevant to the plea.” (Hernandez, supra, 20 Cal.5th at
p. 617.) He declared that he had come to the United States as a
young teenager and refugee; at the time of the plea, he was
married with a child, and both his wife and child were United
States citizens; and his parents and siblings lived in the United
States. He declared that staying in the United States with his
family was “the most important thing” to him and he would have
been willing to plead to a more serious charge, accept more time
in custody, or go to trial to avoid the immigration consequences of
the plea.
But the record lacked evidence of Gazazyan’s “personal
characteristics” suggesting he was unable to “understand the
plea, its consequences, and [his] options.” (Hernandez, supra, 20
Cal.5th at p. 617.) Gazazyan did not highlight any such evidence
to show that his ability to understand the consequences of his
18
plea was impaired. The evidence in the record indicates that
Gazazyan participated in the proceedings without an interpreter
and he had significant prior experience with the criminal justice
system. According to the probation report, he told a probation
officer that he completed the 11th grade, he had attended some
community college and trade school, and he received a “network
technician certificate.”3 None of this evidence created an
inference that he was unable to understand the plea, its
consequences, or his options.
Hernandez explains that “ ‘no specific kind of evidence is a
prerequisite to relief.’ ” (Hernandez, supra, 20 Cal.5th at p. 618.)
But “[b]ecause the burden is on the defendant to establish error
and because courts must consider the totality of the
circumstances in determining whether the defendant has
satisfied this burden, it will generally be in a defendant’s interest
to create a robust record.” (Ibid.) On the record before us, we
would conclude that Gazazyan has not shown by a preponderance
of the evidence error damaging his ability to meaningfully
understand the immigration consequences of his plea and to
defend against or knowingly accept those consequences.
However, like the trial court, Gazazyan did not have the
benefit of Hernandez, which has clarified the showing necessary
for a defendant to establish the requisite error under
section 1473.7. We therefore conclude this is one of the cases
Hernandez suggested is appropriately remanded to “allow the
defendant an opportunity to make a fuller presentation of
evidence with the guidance [Hernandez has] provided in mind
and [to] permit the trial court to make a new ruling taking that
3 Gazazyan’s motion confirmed that he had been enrolled at
United Education Institute in 1999.
19
additional evidence into account.” (Hernandez, supra, 20 Cal.5th
at p. 621, fn. 4.)
DISPOSITION
The order denying Gazazyan’s section 1473.7 motion to
withdraw his plea and vacate his conviction is reversed. The
matter is remanded to the trial court with directions to conduct a
new hearing on Gazazyan’s section 1473.7 motion, consistent
with Hernandez, and permitting the parties to offer additional
evidence.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, P. J.
We concur:
HANASONO, J.
DELGADO, J.*
* Judge of the Santa Clara Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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